Irish Supreme Court: Frozen Human Embryos are not “Unborn”

By J.C. von Krempach, J.D. | December 23, 2009

While it is undisputed that every human person has a right to life, pro-abortionists doubt that this right is also enjoyed by a child in its mother’s womb. To foreclose such doubts, the Irish Constitution, in its Article 40.3.3 (included through the 8th Amendment) explicitly foresees: “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”

In a recent case (Roche vs. Roche & others), the Irish Supreme Court had to decide whether ‘the right to life of the unborn’ is enjoyed also by a deep-frozen embryo created through in-vitro-fertilization.

This was a case brought by a woman seeking to have three frozen embryos implanted in her womb against the wishes of her estranged husband. The Court considered the private law issues surrounding various documents signed by the parties but also the constitutional question which had been raised, i.e. whether unimplanted IVF embryos were entitled to the protection of Article 40.3.3 of the Irish Constitution. Based on the wording of the text and its assessment of the intention of the people in adopting the 8th Amendment, the Court decided that the intention of the Amendment was to prevent the legalisation of abortion and that unimplanted embryos were beyond its scope. Several of the Justices hinted that there may be protections for the life of such embryos in other provisions of the Constitution, but these were not raised by the appellant. The court upheld the decision of the High Court.

The Decision seems to defy logical thinking. A human being can only either be ‘born’ (in which case there would be no doubt as to its right to life), or ‘unborn’ (in which case there can, in the light of Article 40.3.3, also be no such doubt). But the frozen embryo appears to be neither ‘born’ nor ‘unborn’. The argument that it does not enjoy a right to life because it is not a ‘human being’ does not fly, because it is no more and no less a ‘human being’ than those embryos enjoying constitutional protection.

Of course, there are what seem to be good reasons for objecting to the view that frozen embryos have a right to life: if they had, it would be somebody’s duty to have them implanted and carry them to term. But on the other hand, there can be no doubt that frozen embryos, contrary to the Supreme Court’s finding, are ‘unborn’.

Regrettably, therefore, the Supreme Court, through this rather arbitrary and ill-founded decision, appears to weaken the guarantees the Irish  Constitution foresees with regard to the right to life of the unborn. And it does so without any foreign pressure.

Given that it is not a realistic option to force a woman to have an embryo implanted into her womb, the only possible conclusion would have been that not only the destruction, but also the artificial creation of embryos is contrary to Article 40.3.3. Indeed, the Supreme Court should have ruled that IVF violates the Constitution.

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